Self-Regulatory Organizations; National Association of Securities Dealers, Inc.; Notice of Filing of Proposed Rule Change and Amendment No. 1 Thereto To Clarify the Listing Standards Applicable to Companies in Bankruptcy Proceedings, 54096-54098 [E5-4980]
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54096
Federal Register / Vol. 70, No. 176 / Tuesday, September 13, 2005 / Notices
be submitted to OMB within 30 days of
this notice.
Dated: September 6, 2005.
Jonathan G. Katz,
Secretary.
[FR Doc. E5–4977 Filed 9–12–05; 8:45 am]
Exchange Commission, 100 F Street,
NE., Washington, DC 20549. Comments
must be submitted to OMB within 30
days of this notice.
Dated: September 6, 2005.
Jonathan G. Katz,
Secretary.
[FR Doc. E5–4978 Filed 9–12–05; 8:45 am]
BILLING CODE 8010–01–P
SECURITIES AND EXCHANGE
COMMISSION
BILLING CODE 8010–01–P
Submission for OMB Review;
Comment Request
SECURITIES AND EXCHANGE
COMMISSION
Upon Written Request, Copies
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and Information Services, Washington,
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Extension: Rule 17a–19; SEC File No. 270–
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Information Technology, Securities and
VerDate Aug<18>2005
16:06 Sep 12, 2005
Jkt 205001
[Release No. 34–52376A; File No. SR–
NASD–2005–102]
Self-Regulatory Organizations;
National Association of Securities
Dealers, Inc.; Notice of Filing and
Immediate Effectiveness of Proposed
Rule Change and Amendment No. 1
Thereto To Allow Members To Report
Certain Trades in Exchange-Listed
Securities Through the Execution
Services of the Nasdaq Market Center
September 7, 2005.
Correction
On September 1, 2005, the
Commission issued notice on a
proposed rule change by the National
Association of Securities Dealers, Inc.
(‘‘NASD’’), through its subsidiary, The
Nasdaq Stock Market, Inc. (‘‘Nasdaq’’).1
The proposed rule text in the first
paragraph of NASD Rule 4720 should
state as follows below. Proposed new
language is in italics; proposed
deletions are in brackets.
Subject to the conditions set forth
below, members may utilize the Nasdaq
Market Center to report trades in Nasdaq
Market Center eligible securities
required or eligible to be reported to
Nasdaq pursuant to the Rule 4630, 4640,
4650, [and] 6100 and 6400 Series.’’
For the Commission, by the Division of
Market Regulation, pursuant to delegated
authority.2
Jonathan G. Katz,
Secretary.
[FR Doc. E5–4979 Filed 9–12–05; 8:45 am]
BILLING CODE 8010–01–P
1 See Exchange Act Release No. 52376 (September
1, 2005).
2 17 CFR 200.30–3(a)(12).
PO 00000
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SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–52385; File No. SR–NASD–
2005–082]
Self-Regulatory Organizations;
National Association of Securities
Dealers, Inc.; Notice of Filing of
Proposed Rule Change and
Amendment No. 1 Thereto To Clarify
the Listing Standards Applicable to
Companies in Bankruptcy Proceedings
September 7, 2005.
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934
(‘‘Act’’),1 and Rule 19b-–4 thereunder,2
notice is hereby given that on June 22,
2005, the National Association of
Securities Dealers, Inc. (‘‘NASD’’),
through its subsidiary, The Nasdaq
Stock Market, Inc. (‘‘Nasdaq’’), filed
with the Securities and Exchange
Commission (‘‘Commission’’) the
proposed rule change as described in
Items I, II, and III below, which Items
have been prepared by Nasdaq. On
August 23, 2005, Nasdaq filed
Amendment No. 1 to the proposed rule
change.3 The Commission is publishing
this notice to solicit comments on the
proposed rule change, as amended, from
interested persons.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
Nasdaq proposes to clarify the listing
standards applicable to companies in
bankruptcy proceedings. Nasdaq will
implement the proposed rule
immediately upon approval.
The text of the proposed rule change
is set forth below. Proposed new
language is italicized.4
4340. Application for Re-inclusion by
Listed Issuers
(a) Reverse Mergers. An issuer must
apply for initial inclusion following a
transaction whereby the issuer
combines with a non-Nasdaq entity,
resulting in a change of control of the
1 15
U.S.C. 78s(b)(1).
CFR 240.19b–4.
3 In Amendment No. 1, Nasdaq made a nonsubstantive correction to the text of the proposed
rule and a correction to the stated purpose of the
proposed rule change.
4 Changes to NASD Rule 4340 are marked to the
rule text, which the Commission recently approved
in Securities Exchange Act Release No. 52342
(August 26, 2005), 70 FR 52456 (September 2, 2005)
(SR–NASD–2004–125). Changes to NASD Rule 4350
are marked to the current version of the rule text.
No other pending rule filings would affect the text
of these rules. Telephone conversation of
September 7, 2005, between Arnold Golub,
Associate Vice President, Nasdaq and David
Michehl, Attorney, Division of Market Regulation,
Commission.
2 17
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Federal Register / Vol. 70, No. 176 / Tuesday, September 13, 2005 / Notices
issuer and potentially allowing the nonNasdaq entity to obtain a Nasdaq Listing
(for purposes of this rule, such a
transaction is referred to as a ‘‘Reverse
Merger’’). In determining whether a
Reverse Merger has occurred, Nasdaq
shall consider all relevant factors
including, but not limited to, changes in
the management, board of directors,
voting power, ownership, and financial
structure of the issuer. Nasdaq shall also
consider the nature of the businesses
and the relative size of the Nasdaq
issuer and non-Nasdaq entity.
(b) Bankruptcy. Nasdaq may use its
discretionary authority under Rule 4300
to deny listing to an issuer that has filed
for protection under any provision of
the federal bankruptcy laws or
comparable foreign laws, even though
the issuer’s securities otherwise meet all
enumerated criteria for continued
inclusion in Nasdaq. In the event that
Nasdaq determines to continue the
listing of such an issuer during a
bankruptcy reorganization, the issuer
shall nevertheless be required to satisfy
all requirements for initial inclusion,
including the payment of initial listing
fees, upon emerging from bankruptcy
proceedings.
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
1. Purpose
When a Nasdaq-listed issuer files for
protection under the bankruptcy laws,
Nasdaq staff generally notifies the
company that its securities are subject to
delisting.5 The company is afforded an
opportunity to request review of that
decision before a Nasdaq Listing
Qualifications Hearing Panel (‘‘Panel’’),
which stays its delisting. On occasion,
Panels have allowed companies to
retain their listing through the
bankruptcy proceeding, provided they
demonstrate: their ability to maintain
compliance with the continued listing
standards throughout the proceeding; a
likelihood that the current equity
holders will maintain a significant
position in the post-bankruptcy
company; and, a likelihood to emerge
from the bankruptcy proceedings in the
reasonably near term, such as may be
the case in a ‘‘pre-packaged’’ bankruptcy
plan.6 Nonetheless, upon emerging from
bankruptcy, these companies are often
substantially changed, including new
board members, management, financial
structure, and shareholders. As such,
Nasdaq believes that the reorganization
4350. Qualitative Listing Requirements
could potentially lead to an entity that
for Nasdaq National Market and Nasdaq is effectively a new issuer. These
SmallCap Market Issuers Except for
concerns are the same ones presented
Limited Partnerships
when considering whether a transaction
is a reverse merger and, in those cases,
(a)—(h) No change.
the company is required to reapply and
(i) Shareholder Approval
meet the initial inclusion standards.7
Nasdaq therefore believes that a
(1)—(6) No change.
reorganized company should be
(7) Shareholder approval shall not be
required to apply for listing and meet all
required for any share issuance by a
initial inclusion criteria upon discharge
company if such issuance is part of a
from bankruptcy proceedings.
court-approved reorganization under
Nasdaq also proposes to clarify that
the federal bankruptcy laws or
any securities issued by a Nasdaq-listed
comparable foreign laws.
issuer pursuant to a court-approved
plan of reorganization are exempt from
*
*
*
*
*
Nasdaq’s shareholder approval rules. In
II. Self-Regulatory Organization’s
such cases, the bankruptcy court has
Statement of the Purpose of, and
jurisdiction over the protection of
Statutory Basis for, the Proposed Rule
shareholders, and it would be
Change
In its filing with the Commission,
Nasdaq included statements concerning
the purpose of and basis for the
proposed rule change and discussed any
comments it received on the proposed
rule change. The text of these statements
may be examined at the places specified
in Item IV below. Nasdaq has prepared
summaries, set forth in Sections A, B,
and C below, of the most significant
aspects of such statements.
VerDate Aug<18>2005
16:06 Sep 12, 2005
Jkt 205001
5 Nasdaq’s delisting notice generally is based on
one or more of the following concerns: (i) Public
interest concerns raised by the bankruptcy filing;
(ii) concerns regarding the residual equity interest
of the existing listed securities holders; or (iii)
concerns about the company’s ability to sustain
compliance with all requirements for continued
listing.
6 In that regard, the Commission recently
approved rules that would limit a Panel’s discretion
to grant exceptions to the listing standards to 90
days. See Securities Exchange Act Release No.
51268 (February 28, 2005), 70 FR 10716 (March 4,
2005) (SR–NASD–2004–125).
7 See NASD Rule 4330(f), which was recently
renumbered in SR–NASD–2004–125 as NASD Rule
4340.
PO 00000
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54097
inconsistent with the overarching
federal bankruptcy policy to give
shareholders an ability to contradict the
court’s approval of a plan of
reorganization that involves the
issuance of shares. This approach would
be consistent with that taken in Section
1145 of Chapter 11 of the Bankruptcy
Code,8 which exempts securities issued
in bankruptcy reorganizations from
Section 5 of the Securities Act of 1933.9
2. Statutory Basis
Nasdaq believes that the proposed
rule change is consistent with the
provisions of Section 15A of the Act,10
in general, and with Section 15A(b)(6)
of the Act,11 in particular, in that it is
designed to prevent fraudulent and
manipulative acts and practices,
promote just and equitable principles of
trade, remove impediments to a free and
open market and a national market
system, and, in general, protect
investors and the public interest.
Nasdaq believes that the proposed rule
change is consistent with these
requirements in that it is designed to
remove ambiguity surrounding the
standards applicable to companies
involved in bankruptcy proceedings and
requires such companies to meet the
heightened initial inclusion standards
upon emerging from bankruptcy,
thereby protecting investors and the
public interest.
B. Self-Regulatory Organization’s
Statement on Burden on Competition
Nasdaq does not believe that the
proposed rule change will result in any
burden on competition that is not
necessary or appropriate in furtherance
of the purposes of the Act, as amended.
C. Self-Regulatory Organization’s
Statement on Comments on the
Proposed Rule Change Received from
Members, Participants or Others
Written comments were neither
solicited nor received.
III. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
Within 35 days of the date of
publication of this notice in the Federal
Register or within such longer period (i)
as the Commission may designate up to
90 days of such date if it finds such
longer period to be appropriate and
publishes its reasons for so finding or
(ii) as to which the self-regulatory
organization consents, the Commission
will:
8 11
U.S.C. 1145.
U.S.C. 77e.
10 15 U.S.C. 78o–3.
11 15 U.S.C. 78o–3(b)(6).
9 15
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54098
Federal Register / Vol. 70, No. 176 / Tuesday, September 13, 2005 / Notices
A. By order approve such proposed
rule change; or
B. institute proceedings to determine
whether the proposed rule change
should be disapproved.
For the Commission, by the Division of
Market Regulation, pursuant to delegated
authority.12
Jonathan G. Katz,
Secretary.
[FR Doc. E5–4980 Filed 9–12–05; 8:45 am]
IV. Solicitation of Comments
BILLING CODE 8010–01–P
Interested persons are invited to
submit written data, views, and
arguments concerning the foregoing,
including whether the proposed rule
change, as amended, is consistent with
the Act. Comments may be submitted by
any of the following methods:
Electronic Comments
16:06 Sep 12, 2005
Jkt 205001
Culturally Significant Objects Imported
for Exhibition Determinations:
‘‘Pompeii: Stories from an Eruption’’
ACTION:
DEPARTMENT OF STATE
[Public Notice 5188]
Culturally Significant Objects Imported
for Exhibition Determinations:
‘‘Elizabeth Murray’’
ACTION:
Department of State.
Notice.
SUMMARY: Notice is hereby given of the
following determinations: Pursuant to
the authority vested in me by the Act of
October 19, 1965 [79 Stat. 985; 22 U.S.C.
2459], Executive Order 12047 of March
27, 1978, the Foreign Affairs Reform and
Restructuring Act of 1998 [112 Stat.
Paper Comments
2681, et seq.; 22 U.S.C. 6501 note, et
seq.], Delegation of Authority No. 234 of
• Send paper comments in triplicate
October 1, 1999 [64 FR 56014],
to Jonathan G. Katz, Secretary,
Delegation of Authority No. 236 of
Securities and Exchange Commission,
October 19, 1999 [64 FR 57920], as
Station Place, 100 F Street, NE.,
amended, and Delegation of Authority
Washington, DC 20549–9303.
No. 257 of April 15, 2003 [68 FR 19875],
All submissions should refer to File
I hereby determine that the objects to be
Number SR-NASD–2005–082. This file
included in the exhibition, ‘‘Elizabeth
number should be included on the
subject line if e-mail is used. To help the Murray,’’ imported from abroad for
temporary exhibition within the United
Commission process and review your
States, are of cultural significance. The
comments more efficiently, please use
only one method. The Commission will objects are imported pursuant to loan
post all comments on the Commission’s agreements with the foreign lenders. I
also determine that the exhibition or
Internet Web site (https://www.sec.gov/
display of the exhibit objects at the
rules/sro.shtml). Copies of the
Museum of Modern Art, New York, New
submission, all subsequent
York, from on or about October 23,
amendments, all written statements
2005, to on or about January 9, 2006,
with respect to the proposed rule
and at possible additional venues yet to
change that are filed with the
be determined, is in the national
Commission, and all written
interest. Public Notice of these
communications relating to the
determinations is ordered to be
proposed rule change between the
Commission and any person, other than published in the Federal Register.
FOR FURTHER INFORMATION CONTACT: For
those that may be withheld from the
further information, including a list of
public in accordance with the
exhibit objects, contact Paul W.
provisions of 5 U.S.C. 552, will be
Manning, Attorney-Adviser, Office of
available for inspection and copying in
the Legal Adviser, 202/453–8052, and
the Commission’s Public Reference
Room. Copies of such filing also will be the address is United States Department
of State, SA–44, Room 700, 301 4th
available for inspection and copying at
Street, SW., Washington, DC 20547–
the principal office of the NASD. All
0001.
comments received will be posted
without change; the Commission does
Dated: September 7, 2005.
not edit personal identifying
C. Miller Crouch,
information from submissions. You
Principal Deputy Assistant Secretary for
should submit only information that
Educational and Cultural Affairs, Department
you wish to make available publicly. All of State.
submissions should refer to File
[FR Doc. 05–18127 Filed 9–12–05; 8:45 am]
Number SR–NASD–2005–082 and
BILLING CODE 4710–08–P
should be submitted on or before
October 4, 2005.
17 17 CFR 200.30–3(a)(12).
VerDate Aug<18>2005
[Public Notice 5189]
Department of State.
Notice.
AGENCY:
AGENCY:
• Use the Commission’s Internet
comment form (https://www.sec.gov/
rules/sro.shtml); or
• Send an e-mail to rulecomments@sec.gov. Please include File
Number SR-NASD–2005–082 on the
subject line.
DEPARTMENT OF STATE
PO 00000
Frm 00094
Fmt 4703
Sfmt 4703
SUMMARY: Notice is hereby given of the
following determinations: Pursuant to
the authority vested in me by the Act of
October 19, 1965 [79 Stat. 985; 22 U.S.C.
2459], Executive Order 12047 of March
27, 1978, the Foreign Affairs Reform and
Restructuring Act of 1998 [112 Stat.
2681, et seq.; 22 U.S.C. 6501 note, et
seq.], Delegation of Authority No. 234 of
October 1, 1999 [64 FR 56014],
Delegation of Authority No. 236 of
October 19, 1999 [64 FR 57920], as
amended, and Delegation of Authority
No. 257 of April 15, 2003 [68 FR 19875],
I hereby determine that the objects to be
included in the exhibition, ‘‘Pompeii:
Stories from an Eruption,’’ imported
from abroad for temporary exhibition
within the United States, are of cultural
significance. The objects are imported
pursuant to loan agreements with the
foreign lenders. I also determine that the
exhibition or display of the exhibit
objects at the Field Museum, Chicago,
Illinois, from on or about October 22,
2005, to on or about March 26, 2006,
and at possible additional venues yet to
be determined, is in the national
interest. Public Notice of these
determinations is ordered to be
published in the Federal Register.
FOR FURTHER INFORMATION CONTACT: For
further information, including a list of
exhibit objects, contact Paul W.
Manning, Attorney-Adviser, Office of
the Legal Adviser, 202/453–8052, and
the address is United States Department
of State, SA–44, Room 700, 301 4th
Street, SW., Washington, DC 20547–
0001.
Dated: September 7, 2005.
C. Miller Crouch,
Principal Deputy Assistant Secretary for
Educational and Cultural Affairs, Department
of State.
[FR Doc. 05–18126 Filed 9–12–05; 8:45 am]
BILLING CODE 4710–08–P
DEPARTMENT OF STATE
[Public Notice 5187]
Culturally Significant Objects Imported
for Exhibition Determinations: ‘‘Ewer’’
Department of State.
Notice.
AGENCY:
ACTION:
E:\FR\FM\13SEN1.SGM
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]]>Agencies
[Federal Register Volume 70, Number 176 (Tuesday, September 13, 2005)]
[Notices]
[Pages 54096-54098]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E5-4980]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-52385; File No. SR-NASD-2005-082]
Self-Regulatory Organizations; National Association of Securities
Dealers, Inc.; Notice of Filing of Proposed Rule Change and Amendment
No. 1 Thereto To Clarify the Listing Standards Applicable to Companies
in Bankruptcy Proceedings
September 7, 2005.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b--4 thereunder,\2\ notice is hereby given
that on June 22, 2005, the National Association of Securities Dealers,
Inc. (``NASD''), through its subsidiary, The Nasdaq Stock Market, Inc.
(``Nasdaq''), filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been prepared by Nasdaq. On August 23,
2005, Nasdaq filed Amendment No. 1 to the proposed rule change.\3\ The
Commission is publishing this notice to solicit comments on the
proposed rule change, as amended, from interested persons.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ In Amendment No. 1, Nasdaq made a non-substantive correction
to the text of the proposed rule and a correction to the stated
purpose of the proposed rule change.
---------------------------------------------------------------------------
I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
Nasdaq proposes to clarify the listing standards applicable to
companies in bankruptcy proceedings. Nasdaq will implement the proposed
rule immediately upon approval.
The text of the proposed rule change is set forth below. Proposed
new language is italicized.\4\
---------------------------------------------------------------------------
\4\ Changes to NASD Rule 4340 are marked to the rule text, which
the Commission recently approved in Securities Exchange Act Release
No. 52342 (August 26, 2005), 70 FR 52456 (September 2, 2005) (SR-
NASD-2004-125). Changes to NASD Rule 4350 are marked to the current
version of the rule text. No other pending rule filings would affect
the text of these rules. Telephone conversation of September 7,
2005, between Arnold Golub, Associate Vice President, Nasdaq and
David Michehl, Attorney, Division of Market Regulation, Commission.
---------------------------------------------------------------------------
4340. Application for Re-inclusion by Listed Issuers
(a) Reverse Mergers. An issuer must apply for initial inclusion
following a transaction whereby the issuer combines with a non-Nasdaq
entity, resulting in a change of control of the
[[Page 54097]]
issuer and potentially allowing the non-Nasdaq entity to obtain a
Nasdaq Listing (for purposes of this rule, such a transaction is
referred to as a ``Reverse Merger''). In determining whether a Reverse
Merger has occurred, Nasdaq shall consider all relevant factors
including, but not limited to, changes in the management, board of
directors, voting power, ownership, and financial structure of the
issuer. Nasdaq shall also consider the nature of the businesses and the
relative size of the Nasdaq issuer and non-Nasdaq entity.
(b) Bankruptcy. Nasdaq may use its discretionary authority under
Rule 4300 to deny listing to an issuer that has filed for protection
under any provision of the federal bankruptcy laws or comparable
foreign laws, even though the issuer's securities otherwise meet all
enumerated criteria for continued inclusion in Nasdaq. In the event
that Nasdaq determines to continue the listing of such an issuer during
a bankruptcy reorganization, the issuer shall nevertheless be required
to satisfy all requirements for initial inclusion, including the
payment of initial listing fees, upon emerging from bankruptcy
proceedings.
4350. Qualitative Listing Requirements for Nasdaq National Market and
Nasdaq SmallCap Market Issuers Except for Limited Partnerships
(a)--(h) No change.
(i) Shareholder Approval
(1)--(6) No change.
(7) Shareholder approval shall not be required for any share
issuance by a company if such issuance is part of a court-approved
reorganization under the federal bankruptcy laws or comparable foreign
laws.
* * * * *
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, Nasdaq included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. Nasdaq has prepared summaries, set forth in Sections A,
B, and C below, of the most significant aspects of such statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
1. Purpose
When a Nasdaq-listed issuer files for protection under the
bankruptcy laws, Nasdaq staff generally notifies the company that its
securities are subject to delisting.\5\ The company is afforded an
opportunity to request review of that decision before a Nasdaq Listing
Qualifications Hearing Panel (``Panel''), which stays its delisting. On
occasion, Panels have allowed companies to retain their listing through
the bankruptcy proceeding, provided they demonstrate: their ability to
maintain compliance with the continued listing standards throughout the
proceeding; a likelihood that the current equity holders will maintain
a significant position in the post-bankruptcy company; and, a
likelihood to emerge from the bankruptcy proceedings in the reasonably
near term, such as may be the case in a ``pre-packaged'' bankruptcy
plan.\6\ Nonetheless, upon emerging from bankruptcy, these companies
are often substantially changed, including new board members,
management, financial structure, and shareholders. As such, Nasdaq
believes that the reorganization could potentially lead to an entity
that is effectively a new issuer. These concerns are the same ones
presented when considering whether a transaction is a reverse merger
and, in those cases, the company is required to reapply and meet the
initial inclusion standards.\7\ Nasdaq therefore believes that a
reorganized company should be required to apply for listing and meet
all initial inclusion criteria upon discharge from bankruptcy
proceedings.
---------------------------------------------------------------------------
\5\ Nasdaq's delisting notice generally is based on one or more
of the following concerns: (i) Public interest concerns raised by
the bankruptcy filing; (ii) concerns regarding the residual equity
interest of the existing listed securities holders; or (iii)
concerns about the company's ability to sustain compliance with all
requirements for continued listing.
\6\ In that regard, the Commission recently approved rules that
would limit a Panel's discretion to grant exceptions to the listing
standards to 90 days. See Securities Exchange Act Release No. 51268
(February 28, 2005), 70 FR 10716 (March 4, 2005) (SR-NASD-2004-125).
\7\ See NASD Rule 4330(f), which was recently renumbered in SR-
NASD-2004-125 as NASD Rule 4340.
---------------------------------------------------------------------------
Nasdaq also proposes to clarify that any securities issued by a
Nasdaq-listed issuer pursuant to a court-approved plan of
reorganization are exempt from Nasdaq's shareholder approval rules. In
such cases, the bankruptcy court has jurisdiction over the protection
of shareholders, and it would be inconsistent with the overarching
federal bankruptcy policy to give shareholders an ability to contradict
the court's approval of a plan of reorganization that involves the
issuance of shares. This approach would be consistent with that taken
in Section 1145 of Chapter 11 of the Bankruptcy Code,\8\ which exempts
securities issued in bankruptcy reorganizations from Section 5 of the
Securities Act of 1933.\9\
---------------------------------------------------------------------------
\8\ 11 U.S.C. 1145.
\9\ 15 U.S.C. 77e.
---------------------------------------------------------------------------
2. Statutory Basis
Nasdaq believes that the proposed rule change is consistent with
the provisions of Section 15A of the Act,\10\ in general, and with
Section 15A(b)(6) of the Act,\11\ in particular, in that it is designed
to prevent fraudulent and manipulative acts and practices, promote just
and equitable principles of trade, remove impediments to a free and
open market and a national market system, and, in general, protect
investors and the public interest. Nasdaq believes that the proposed
rule change is consistent with these requirements in that it is
designed to remove ambiguity surrounding the standards applicable to
companies involved in bankruptcy proceedings and requires such
companies to meet the heightened initial inclusion standards upon
emerging from bankruptcy, thereby protecting investors and the public
interest.
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\10\ 15 U.S.C. 78o-3.
\11\ 15 U.S.C. 78o-3(b)(6).
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B. Self-Regulatory Organization's Statement on Burden on Competition
Nasdaq does not believe that the proposed rule change will result
in any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act, as amended.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received from Members, Participants or Others
Written comments were neither solicited nor received.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Within 35 days of the date of publication of this notice in the
Federal Register or within such longer period (i) as the Commission may
designate up to 90 days of such date if it finds such longer period to
be appropriate and publishes its reasons for so finding or (ii) as to
which the self-regulatory organization consents, the Commission will:
[[Page 54098]]
A. By order approve such proposed rule change; or
B. institute proceedings to determine whether the proposed rule
change should be disapproved.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change, as amended, is consistent with the Act. Comments may be
submitted by any of the following methods:
Electronic Comments
Use the Commission's Internet comment form (https://
www.sec.gov/rules/sro.shtml); or
Send an e-mail to rule-comments@sec.gov. Please include
File Number SR-NASD-2005-082 on the subject line.
Paper Comments
Send paper comments in triplicate to Jonathan G. Katz,
Secretary, Securities and Exchange Commission, Station Place, 100 F
Street, NE., Washington, DC 20549-9303.
All submissions should refer to File Number SR-NASD-2005-082. This
file number should be included on the subject line if e-mail is used.
To help the Commission process and review your comments more
efficiently, please use only one method. The Commission will post all
comments on the Commission's Internet Web site (https://www.sec.gov/
rules/sro.shtml). Copies of the submission, all subsequent amendments,
all written statements with respect to the proposed rule change that
are filed with the Commission, and all written communications relating
to the proposed rule change between the Commission and any person,
other than those that may be withheld from the public in accordance
with the provisions of 5 U.S.C. 552, will be available for inspection
and copying in the Commission's Public Reference Room. Copies of such
filing also will be available for inspection and copying at the
principal office of the NASD. All comments received will be posted
without change; the Commission does not edit personal identifying
information from submissions. You should submit only information that
you wish to make available publicly. All submissions should refer to
File Number SR-NASD-2005-082 and should be submitted on or before
October 4, 2005.
For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\12\
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\17\ 17 CFR 200.30-3(a)(12).
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Jonathan G. Katz,
Secretary.
[FR Doc. E5-4980 Filed 9-12-05; 8:45 am]
BILLING CODE 8010-01-P
